Rippetoe v. Dwyer

• Decision Date: 19 March 1886
• Docket Number: Case No. 1596
• Citation: Rippetoe v. Dwyer, 65 Tex. 703 (Tex. 1886)
• Parties: N. A. RIPPETOE ET AL. v. THOMAS DWYER.
• Court: Texas Supreme Court

65 Tex. 703

N. A. RIPPETOE ET AL.

v.THOMAS DWYER.

Case No. 1596

Supreme Court of Texas.

March 19, 1886.

APPEAL from Washington. Tried below before the Hon. James B. McFarland.

This was an action of trespass to try title, instituted, on February 22, 1873, by Thomas Dwyer, against A. H. Rippetoe, and his tenant, Julius Tamschowsky, to recover a part of lot forty-three, in the city of Brenham, and rents and damages.

A. H. Rippetoe died in April, 1881, and the appellants, N. A. Rippetoe, surviving wife and sole devisee and legatee under the will of A. H. Rippetoe, deceased, and C. R. Breedlove, executor of the will, and Ida Luhn, joined by her husband, R. E. Luhn, and Albert, John, Maud, Harrison and Mary Rippetoe, children of decedent, were made parties defendant.

The cause was tried on September 16, 1882, and resulted in a judgment in favor of the plaintiff for the premises in controversy, and $1,664 rents, besides costs of suit. From this judgment the defendants have appealed.

This is the third time this cause has been before the supreme court. The report of the first decision will be found in 49 Tex. 498; the second decision was by the commissioners of appeals, and is not reported. The facts sufficiently appear in the opinion.

Breedlove & Ewing, for appellants, on the questions discussed in the opinion, cited: Fitch v. Boyer, 51 Tex. 337;McAnear v. Epperson, 54 Tex. 223. Murchison v. White, 54 Tex. 81;Crane v. Blum, 56 Tex. 325;Tennell v. Breedlove, 54 Tex. 540;Laughter v. Seela, 59 Tex. 177; Pierce v. Logan, Tex. Law Rep., vol. 1, p. 419; Freeman on Judg., secs. 132, 334; Rorer on Judicial Sales, secs. 466-469, and authorities cited; Lamothe v. Lipott, 40 Mo. 142; Smith v. Lewis, 3 Johns. 147; Kirkland v. Brown's Admr's, 4 Humph. 174;Robinson v. Zollinger, 9 Watts 170;Meuley v. Zeigler, 23 Tex. 88;Littleton v. Giddings, 47 Tex. 109;Wilson v. Williams, 25 Tex 66; Wade on Notice, p. 312, sec. 684; Abbott's Trial Ev. 188-190; Perry on Trusts, sec. 222.

Sayles & Bassett, for appellee, on the question of lis pendens, cited: Johnson v. Shaw, 41 Tex. 438, 439;Johnson v. Timmons, 50 Tex. 532, 533, 537;Johnson v. Shaw, 33 Tex. 590; 3 Sugden on Vendors 459; Freeman on Judg., sec. 202; Herman on Ex., sec. 331; Wade on Notice, secs. 341, 350, 357, 358, 359, 367; Murray v. Ballou, 1 Johns. Ch. 566;Fox v. Reeder, 28 Ohio St. 181;Lessee of Trimble v. Boothby, 14 Ohio, 109; Riggs v. Hanrick, Tex. Law Rev., vol. 2, p. 102; Kinney v. Vinson, 32 Tex. 125; Sorrel v. Carpenter, 2 P. W. 483; Parks v. Jackson, 11 Wend. 442;Miller v. Alexander, 13 Tex. 497.

That, when two or more are jointly interested in the purchase of a piece of land, notice to one of such parties of any matter in relation to that particular piece of land or transaction is notice to all, they cited: Littleton v. Giddings, 47 Tex. 109;Stockwell v. United States, 13 Wall. 531; Davies v. Harvey, Law Reps., 9 Q. B. 433; s. c., 9 Eng. Rep. (Moak's) 367.

STAYTON, ASSOCIATE JUSTICE.

Pressley bought the lot, of which that in controversy is a part, from Browning, on March 17, 1859, and, to secure the balance of purchase money, executed three notes, maturing January 1, 1860. Pressley conveyed to Jennings, February 19, 1861, and Jennings conveyed to the plaintiff, Dwyer, March 16, 1861. One of the notes executed by Pressley, being unpaid, suit was brought by its holder against Pressley, on February 29, 1860, wherein a foreclosure of the vendor's lien was sought. The deed to Pressley recited the execution of the three notes, but retained no express lien. He answered in the action against him, but, afterwards, withdrew his defenses, and, on April 21, 1860, judgment went against him for the sum due on the note sued upon, and foreclosing the vendor's lien.

On September 27, 1860, Pressley sued out a writ of error, and by this court the judgment against him was reversed, on February 18, 1867, and the cause remanded. When the cause returned to the district court, the petition was amended, a new party made, and Pressley again cited. He made no further appearance in the case, and, on October 17, 1870, judgment was taken against him for the debt, and foreclosing the vendor's lien on the lot, of which that in controversy is a part, and, on another lot, which was sold to Pressley at the same time, and on account of an insufficient description of which, the former judgment was reversed. The two lots were sold under this judgment, and under another against Pressley, rendered against him on another of the notes given by him for the purchase money, in an action instituted on March 18, 1868, and, at these sales, Rippetoe became the purchaser.

The plaintiff, Dwyer, alleges that pending the writ of error from the judgment rendered against Pressley, on April 21, 1860, Pressley settled that judgment by paying it in full to one of the attorneys, who represented the plaintiff in that cause, who agreed to take such steps as were necessary to protect him from further liability on account of that matter. He further alleges, that all these facts were known to Rippetoe before he bought.

The evidence as to the payment by Pressley is conflicting, his own testimony directly supporting the payment, and circumstantial evidence tending strongly to show that he never made the payment. If the payment was made, there is no evidence that Rippetoe had actual notice of it, or that he had notice of such facts as would put him upon inquiry, and operate as constructive notice, unless the following facts were sufficient for that purpose.

Giddings & Onins were the attorneys for the plaintiff in the suit against Pressley, which it is claimed was settled by payment while pending on writ of error in this court. That firm was composed of J. D. & D. C. Giddings, and J. M. Onins. The payment is claimed to have been made to J. D. Giddings, who died before this defense was set up, and there is no evidence that either D. C. Giddings or J. M. Onins had any actual knowledge of any such settlement and payment.

Onins ceased to be a member of the firm of Giddings & Onins in 1861, and from that time until sometime in 1870 was a member of the firm of Swearingen & Onins.

Prior to the rendition of the two judgments, against Pressley, under which Rippetoe bought, the two notes on which they were rendered were transferred to a third person for the benefit of Swearingen & Onins, who paid to Giddings & Giddings the entire sum due on them, and assumed the payment of costs in the two cases, with the understanding that the two cases should proceed to judgment in the name of the original plaintiffs.

Prior to the rendition of the judgments, Swearingen & Onins sold to Rippetoe a one-half interest in the claims, for which he seems to have paid full value.

When the property was sold under the judgments, it was bought by Rippetoe for the benefit of Swearingen & Onins and himself.

Subsequently to this sale, Swearingen conveyed his interest in the property bought, to Onins, and as early as December, 1871, Giddings & Giddings bought a one-third interest in the property from Onins and Rippetoe.

After the notes of Pressley were transferred, the firm of Giddings & Giddings, although their names appeared on the docket as attorneys for the plaintiffs, ceased to control the cases, and they were prosecuted to final judgments by Swearingen & Onins.

As the plaintiff, Dwyer, bought before the suit was instituted against Pressley, on March 18, 1868, was brought, it is evident that not being made a party thereto, he is not affected by it.

He bought, however, while the first suit against Pressley was pending, and it is claimed that he is bound by the judgment rendered in it as a purchaser pendente lite.

Upon this theory, exceptions were urged to so much of his amended pleadings as set up the invalidity of the judgment against Pressley, resulting, as he claimed, from the fact that Pressley had fully paid the judgment then standing against him, while the cause was pending in this court.

Appellant also objected to evidence tending to show that the note or judgment was so paid. The exceptions and objections were overruled.

The court, in effect, charged the jury, that if the indebtedness of Pressley was fully discharged, as alleged by Dwyer, before the final judgment against Pressley was rendered, and that of this fact Rippetoe had knowledge at the time he purchased at sheriff's sale, then they would find for the plaintiff.

All these matters are assigned as error, and the question is: If the facts alleged by Dwyer existed, is he bound by the judgment subsequently rendered against Pressley, as are, ordinarily, persons who purchase the subject-matter of litigation during its pendency?

The action against Pressley was one in which the plaintiff was seeking to enforce a lien on the land bought by...